Saurabh Shyam Shamshery, J. - (1.) Applicants by way of instant application has sought to invoke powers of this Court under Section 482 Cr.P.C. and prayed to quash the order dated 19.1.2019 in Complaint Case No.16864 of 2009, (Dhruv Bhardwaj Vs.vinay Gaur & Ors) under Sections 323, 324, 307, 504 and 506 I.P.C., Police Station-Kavi Nagar, District-Ghaziabad passed by the Chief Judicial Magistrate, Ghaziabad, whereby the application filed by the opposite no.2 has been partly allowed and it has been directed that the applicants shall also be tried under section 307 I.P.C. and accordingly applicants have been summoned under Section 307 I.P.C.
(2.) Factual matrix of the present case is as follows: (a)Opposite Party No.2 lodged a F.I.R. No.780 at Police Station Kavinagar, District-Ghaziabad on 11.8.2008 against the applicants under sections 323, 324, 504 and 506 I.P.C. alleging that: TABLE NOT FOUND (b)Investigating Officer after investigation submitted final report on 30.9.2008 as no case was made out against the applicants. (c)On the direction of Higher Officials, the matter was further investigated however, again final report was submitted on 30.8.2009. (d)Opposite party no.2 filed protest petition on 29.9.2009. The learned court below, after considering the report submitted by the police, treated the Protest Petition as Complaint Case No.16864 of 2009 under Sections 323, 504 and 506 I.P.C. and was registered in the court of learned Chief Judicial Magistrate Ghaziabad vide order dated 9.10.2009. (e)Opposite party no.2 recorded his statement under section 200 Cr.P.C. as well as statements of other witnesses were recorded under Section 202 Cr.P.C. and after considering the material, learned court below summoned the applicants vide order dated 16.2.2010. (f)Applicants appeared before the learned trial court and obtained bail. Applicants filed discharge application which was dismissed on 21.9.2013. (g)Statement of P.W.1 Umesh Bhardwaj was recorded U/s 244 Cr.P.C. and he was cross examined on 10.11.2014. Statement of opposite party no.2/injured Dhruv Bhardwaj was recorded on 06.7.2015 and he was not cross examined by accused/applicants. The charges were framed against accused/applicants U/s 323, 324, 504 506 I.P.C. on 28.8.2015. (h)P.W.2 Dhruv Bhardwaj was not cross examined by accused/applicants and adjournment was sought by them. On 08.3.2016 P.W.2 Dhruv Bhardwaj could not appear before trial court and his evidence was closed by court below. Statement of accused/applicants was recorded on 01.4.2016. An application U/s 311 Cr.P.C. was moved by opposite party no.2/complainant which was allowed by trial court for examination of Dr. R. P. Singh and eye witness Vinod Jha. (i) Eye witness Vinod Jha was examined and he was cross examined on 08.7.2016. Dr. R.P. Singh (Government Doctor) was examined as court witness no.1 on 20.7.2016 and he was cross examined on three dates on 10.8.2016, 22.8.2016, and 20.9.2016 and he proved medical examination report of Umesh Bhardwaj as Ex-Ka 1 on 20.7.2016 and medical examination report of Dhruv Bhardwaj as Ex-Ka-2 on 10.8.2016. Cross-examination was completed on 20.9.2016. P.W.4 Brahmanand Sharma was examined and he was cross examined by accused/applicant on 13.4.2017 and 20.4.2017. When the case was fixed for statements under Section 313 Cr.P.C., the opposite party no.2 moved an application under section 211 Cr.P.C. to summon the applicants under section 307 I.P.C. also on 28.4.2017. Objections were filed on behalf of the applicants, however the application was withdrawn on 15.10.2018 and was dismissed as withdrawn. Later on, opposite party no.2 moved an application under Section 91 Cr.P.C. but the same was also withdrawn. (j) The court below allowed application on behalf of informant/opposite party no2 and opportunity for his cross examination was given by trial court vide order dated 04.8.2018. P.W.2/informant/opposite party no.2 Dhruv Bhardwaj was cross examined by accused/applicants on 04.9.2018, 26.9.2018 and 09.10.2018. His cross examination was completed on 09.10.2018. (k) An application under Section 311 Cr.P.C. was moved by opposite party no.2 Dhruv Bhardwaj wherein it was prayed that offence U/s 307 I.P.C. is made out and accused may be tried U/s 307 I.P.C. also therefore they may be summoned U/s 307 I.P.C. Objections were also filed by the applicants. The trial court allowed the application filed under section 311 Cr.P.C. vide order dated 19.1.2019 and accused/applicants were summoned to face trial U/s 307 I.P.C. also.
(3.) The applicants have challenged the order dated 19.1.2019 in the present application. The counsel for the parties made their submissions at length and also relied upon certain judgments. Written submissions are also filed.;